Firedoglake Covers the Prop 8 Trial

Your center for coverage of Perry vs. Schwarzenegger, a landmark case in marriage equality and civil rights. Check back here for trial coverage by FDL contributors as well as court documents, videos and action items.

Latest on Prop 8:

Perry [now technically Brown] is now, and has been from the outset, the best vehicle for not only bringing marriage equality for all, but doing so in a transcendent and binding legal opinion, and likely with a finding and basis that it is mandated by the Constitutional edicts of Equal Protection and Due Process. That is the holy grail because it would almost certainly place such discriminatory animus against the gay within some level of elevated scrutiny, and that will bleed over immediately into the DOMA fight and the consideration of any and all discrimination against such individuals.

But there is one potential problem – if there is not some vehicle for the Defendant-Intervenors in Perry to establish standing on the appeal, the case may go no further than the 9th Circuit and, even with victory, be binding on no more than the state of California (and it is remotely possible only for the counties Los Angeles and San Francisco as those were the two jurisdictions originally plead in Perry).

Must be nice to have an almost unlimited number of bigoted rubes willing to open their wallets whenever h8 comes calling. Case in point: Charles Cooper, losing lead attorney guiding the ProtectMarriage consiglieres to defeat at every single stage of the Prop 8 trial, announced Oh, Hell Yes, They Will Appeal Chief Judge James Ware’s eloquent, swift beatdown of their horrific motion to order Judge Vaughn Walker to recuse himself because, you know what — he’s Ghey! And he has a long-time partner! And he probably, therefore, wants to marry!

Chief Judge James Ware of the Federal Court of the Northern California District ruled today that the bigots’ argument that Vaughn Walker should have recused himself because he could possibly benefit, by marrying his long-time companion, from his own ruling that Proposition 8 is unconstitutional.

Yesterday was a low point in the federal justice system: it was offensive and heinous that a petitioner could come in to federal court to argue that a judge’s sexual orientation, and relationship status, deprives that judge of the ability to rule impartially. Happily, Judge Ware did not take long to discard this odious argument, made by bigots as a last gasp against the arc of justice.

Judge Vaughn Walker made a speech in Arizona and used a three-minute clip from the video trial record as a visual aid to make a point about broadcasting federal trials. Charles Cooper, lead attorney for the defendant-intervenors, is quite unhappy about Walker’s use of this public record, and has asked the federal court to seize and seal the video record.

For the first time ever, Judge Vaughn Walker verified his sexual orientation publicly in an interview with reporters. He also said it would have been inappropriate to recuse himself from Perry v Schwarzenegger (now Brown) because he’s gay, saying “That’s a very slippery slope.”

The breaking news out of the California Supreme Court is that they WILL entertain a full merits consideration of the question certified to them by the 9th Circuit in the Perry v. Schwarzenegger appeal.

Today’s oral argument will be two hours long, divided into two distinct segments, each an hour in length. The first segment and issue will be the standing issue. David Boies will argue on behalf of Plaintiffs Perry et. al that the Appellant opponents of marriage equality lack the requisite Article III standing to appeal. Washington-based lawyer Charles Cooper, representing Appellant ProtectMarriage.com, the sponsors of Proposition 8, will argue there is sufficient standing. Also appearing and arging as an Appellant in favor of standing will be an attorney representing Imperial County of California who has filed a separate appeal in order to attempt to give governmental cover to the Appellant Proponents of Proposition 8. That appeal was consolidated for purpose of today’s argument.

For the second hour, on the merits portion of the oral argument, famed attorney and former Solicitor General Theodore Olson will handle the constitutional issues of equal protection, due process and fundamental fairness on behalf of Perry et. al and Charles Cooper will again argue on behalf of Appellant sponsors of Proposition 8.

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Proposition 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality.

The panel just announced that will hear the merits appeal on the morning of December 6 is very good and favorable to upholding Judge Walker’s seminal ruling. Today it was announced the panel will consists of Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith.

Well, I thought there was a very good chance that there would be an accelerated briefing and consideration if there was to be consideration on the merits. And there will be consideration on the merits, even if it is concurrent with consideration of the standing issue (here is a very good and detailed discussion of the standing issues and law).

This is a bit of a new wrinkle and, safe to say, gives more life to Proponents/Appellants than many people were giving them recently. And it appears there will be oral argument in San Francisco during the second week of December. Now the next question is what panel for the merits will the appeal be handed to – will it be Wardlaw, Fisher and Berzon – or will it be a new panel? Time will tell, and we should know that very soon. Exciting!

As expected, ProtectMarriage.com has filed an emergency stay of Judge Vaughn Walker’s ruling in the Prop 8 trial with the Ninth Circuit Court of Appeals. The stay that Walker put on his ruling will expire on August 18 absent any action from the Ninth Circuit. A copy of the Emergency Motion for Stay Pending Appeal is here.

Brian Devine notes the argument ProtectMarriage.com has made for “irreparable harm” coming to them if same-sex couples are allowed to marry in the next week….

The hard-core homophobes in the House GOP caucus have revealed themselves, and they are a sorry lot indeed. These are the people American history books will cast into the dustbin: bigots, haters, the sorry folks who see civil rights as a zero-sum game. If you get your civil rights, I lose mine.

The stay requested by DIs has been DENIED by the court, but will be kept in force until August 18 in order to give DIs a chance to apply for a stay from the 9th. The key language from the ruling:

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8. It is so ordered.

I thought from the outset of the stay application that Judge Walker would deny it at the District level in order to force the 9th to get moving on the appeal quickly.

US District Court Judge Vaughn Walker will issue a ruling today on whether same-sex couples can immediately marry in California, or whether they will have to wait for the outcome of an appeal to his ruling overturning Proposition 8.

After issuing his initial ruling, Walker put in place a temporary stay, while both sides prepared arguments and appeals. But today, between 12pm and 3pm ET, Judge Walker will decide whether to lift that stay.

Regardless of the outcome, the defendant-intervenors in the case plan to appeal the ruling to the Ninth Circuit Court of Appeals. But if Walker lifts the stay, same-sex marriage would be legal in California, and couples would immediately have the right to join in legal unions.

As pretty much every sentient being knows by now, Judge Vaughn Walker issued a groundbreaking decision finding California’s Proposition 8 ban on marriage equality to be fundamentally unconstitutional under both equal protection and due process considerations. The defendant-intervenors in the case, who are the dogmatic people supporting Proposition 8 and fighting against marriage equality, did not even wait for Walker’s verdict to be publicly issued before lodging their Motion For Stay Pending Appeal.

The same Wednesday afternoon as he publicly released his opinion, Judge Walker set an accelerated schedule for consideration of DI’s Motion For Stay.

Judge Walker was not placed on the bench to decide whether laws and conduct in the United States match up to the Bible, the Koran, the Torah, or other religious writings. His job is to measure the disputes that come to his courtroom against the laws and constitution of the United States of America.

It’s as if today was the day Judge Vaughn Walker finally got to say to these idiots, “You made me sit through all this bullshit, that had nothing to do with the case, while I had to be polite because it’s my job. Well, here’s what I think of your case.”

[VIDEO] Great summary of today’s verdict by the executive director of the American Foundation for Equal Rights, which brought the Perry action to the federal courts and hired attorneys Theodore Olson and David Boies to win the case.

Yesterday’s anticipation has turned into today’s joy. Judge Vaughn Walker of the United States District Court for the Northern District of California (NDCA) has issued his verdict and, as predicted, he has found in favor of Plaintiffs Kristin Perry, Sandra Steir et. al. The court, in a historic opinion and verdict, has declared California’s Proposition 8 to be unconstitutional:

The opinion is, again as predicted, extremely well written, consummately detailed, brilliantly structured and contains a foundation of extremely well supported findings of fact and conclusions of law. In short, Vaughn Walker has crafted as fine a foundational opinion as could possibly be hoped for, and one that is designed with the intent to withstand appellate scrutiny not just in the 9th Circuit, but in the Supreme Court as well.

Obviously this is but a step in the process because there will be appeals, and the case will, without question, go to the Supreme Court. But, that said, you could not ask for a better platform and posture for a case on this issue to go to the Supremes on. It is all that and more.

UPDATE: STAY GRANTED: “Defendant-intervenors (“proponents”) have moved to stay the court’s judgment pending appeal. Doc #705. They noticed the motion for October 21, 2010 and moved to shorten time. Doc #706. The motion to shorten time is GRANTED. Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to submit their responses to the motion to stay on or before August 6, 2010, at which time the motion will stand submitted without a hearing unless otherwise ordered. The clerk shall STAY entry of judgment herein until the motion to stay pending appeal, Doc #705, has been decided. IT IS SO ORDERED. [signed] Vaughn R Walker, United States District Chief Judge” [end of document]

CONCLUSION
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

As was expected given the extraordinary lawyering and presentation of the facts on the case by Plaintiffs’ Counsel, as well as the clues aptly summed up by Bmaz last night, Judge Vaughn Walker ruled today that California’s Proposition 8 violates the civil rights of same-sex couples to enter into the fundamental American right to marry.

This case will surely be appealed to the Ninth Circuit Court of Appeals, should the rubes who fund the American Bigot-Protectors of Opposite Marriage cough up the money to pay a set of appellate attorneys to provide a new rationale for denying American couples to right to marry. [continued at the link]

Vaughn Walker rules: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Ruling enjoins enforcement of California’s Proposition 8.

I would say that the fact that the sides are already arguing about whether people should have the right to marry in CA immediately–or only after the inevitable appeals–is another sign that Walker is going to rule for marriage equality today.

Here is what other media sources and blogs either do not know or won’t relate: the lead attorneys for the respective sides likely got courtesy copies from the court of Judge Walker’s draft opinion around 2 or 3 o’clock yesterday afternoon.

Judge Vaughn Walker of the Ninth Circuit Court announced Tuesday that he will rule on the Prop 8 case (Perry v Schwarzenegger) on Wednesday, August 4, 2010. The ruling will be issued sometime between 1 and 3pm Pacific time and will not be read from the bench. Judge Walker’s ruling will be issued through the court’s electronic filing system, so it will be available to one and all at exactly the same time.

On August 4, 2010, the court will issue its written order containing findings of fact and conclusions of law following the court trial held in January and June of this year. The order will be e-filed in the court’s Electronic Case Filing system, and will be immediately available thereafter through ECF and PACER. Visit www.cand.uscourts.gov for details on registering for PACER. There will be no court proceeding associated with the publication of the order.

How, then, Ted Olson asked, can the expression of that protected private right result in the state’s withholding of the fundamental marital bond? It can’t. It especially can not when no harm has been shown, by the evidence.

[Judge Walker’s questions and plaintiff and defendant answers are] the crux of one of the most significant and game changing trials that will occur in your lifetime. Yes, the case, with its broad civil rights and liberties implications is literally that significant. Thank you for the privilege folks!

Olson: What is happening here. If it’s a fundamental right to marriage it’s strict scrutiny. Have to have a reason, not post hoc justification, not based on hypothetical, we don’t have that here. We have decision that takes a group of people who have been victims of discrimination, identifiable characteristics, We want to foreclose them from participating in most fundamental relationship in life. You’re discriminating against a group of people, you have to have a good reason for that. I submit, “I don’t know, and I don’t have to put evidence” to Mr. Cooper does not cut it when you’re taking away basic human rights and human dignity, when you don’t know why they’re a threat to your institution.

Picking up Counsel Cooper and Judge Walker in their colloquy about immutability.
Cooper: Under SCOTUS’s description of political powerlessness, we believe that gays and lesbians pass most tests of deciding political power. The legal test from SCOTUS: does the group have the ability to attract the attention of lawmakers? The Ninth Circuit ruled 20 years ago that gays and lesbians are not politically powerless.
Walker: Isn’t that the most important factor?

Cooper: NY Court of Appeals ruled in 2006, until very recently, only marriage between two sexes. MA “changed def of marriage as inherited from common law.” CA: From beginning of statehood, marriage between man and women. Why has marriage been defined as exclusively opposite sex. Makes marriage fundamental to very existence of human race. Court record makes it clear that marriage to channel potentially procreative sex into marriage to ensure that any offspring brought into family.
Walker: DO people get married to benefit the community?

Teresa Stewart for the City and County of San Francisco.
Walker: Does the City and County of SF have standing to appeal?
Stewart: I believe we do.
Walker: Then Imperial County could also show reasons for an appeal?
Walker: Can you particularize the harm, specifically, to the city and county of SF?
Stewart: Stigma propounded by Prop 8, if it were no longer embedded in our constitution, would reduce the costs of our mental health system.

Therese Stewart: The fact that legislation costs govt money is not sufficient to make law unconstitutional. Court decision on public schools. Considered toll on children, but also role of education, basic tools. Serious harm that Prop 8 imposes on gay men and lesbians, their children, and cities. Support case that Prop 8 was born of animus. Laws that can’t be explained give rise to inference.
Walker: Show unique harm to SF.
Stewart: Both to SF and state.
Walker: Point out SF.

After all the lawyers introduce themselves, Walker says,”Well this is an impressive array of legal talent.” Then, explaining that the delay between the trial and the closing argument (caused in part by ACLU dispute over disclosure), he says the delay may be appropriate. “June is, after all the month for weddings.”If I were the defendant-intervenor team, I’m not sure I’d take that as a good omen. Olson up. State has changed constitution to take away right from these plaintiffs. [Con’d]

Good morning from the Burton Federal Courthouse, San Francisco, Ceremonial Courtroom. We are awaiting the start of Closing Arguments today in Perry v Schwarzenegger, the landmark civil rights trial of the century, which will determine the constitutionality of Proposition 8, passed by Californians the same day Barack Obama was elected president. Prop 8 restricts marriage to one man and one woman, and is being challenged by two California same-sex couples who seek to marry, along with the American Foundation for Equal Rights. [Con’d]

Backers of a 2010 ballot initiative to repeal the constitutional ban on same-sex marriage failed to gather enough signatures to qualify their initiative for the ballot. In Prop 8 trial news, Judge Vaughn Walker has notified trial participants that he intends to close the evidentiary record, and seeks comments on that intention by this Friday.

By Teddy Partridge Wednesday 27 January 2010 at 7:26am
Judge Vaughn Walker trying to finish up by noon. Plaintiffs’ Counsel David Boies will continue his cross-examination of Defendant-Intervenors’ expert witness David Blankenhorn.

The American Foundation for Equal Rights, the group organizing the legal challenge to Proposition 8 led by former Bush v. Gore adversaries Theodore Olson and David Boies, has a number of resources on the case: